Flood Control

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A little more than a year after the passage of the Water Resources Reform and Develop Act (WRRDA), the U.S. Army Corps of Engineers (USACE) has issued the draft guidance required by section 1018. And, from a local perspective, the draft guidance is quite good and appears to reflect a softening on some crediting issues that have plagued locally constructed projects for nearly five years.

Background

If we climbed into the “wayback” machine we would find that over the past decades Congress has passed a number of provisions that allowed non-Federal sponsors to do work in advance of Federal planning or construction and then treat those costs as a credit toward the non-Federal sponsor’s cost share on the related Federal project. One of the most popular provisions for this was Section 104 of the Water Resources Development Act of 1986. Section 104 was highly liberal in its ability to lock in potential credit, with very few limitations. Unfortunately for aggressive non-Federal sponsors, the Office of the Assistant Secretary of the Army (ASA) became concerned that as non-Federal sponsors were able to “lock in credit” for planning or construction activities, each of those investments made it harder and harder for USACE to ultimately recommend a project which didn’t align perfectly with the already-constructed and locally-performed work. In other words, USACE awarding credit was actually driving USACE decisions to be made later. As a result, the ASA decided that credit could no longer be issued under Section 104, and instead should be evaluated under Section 221 of the Flood Control Act of 1970 (as that section was amended by section 2003 of WRDA 2007).

A recent Texas Supreme Court case on inverse condemnation has opened the door for a group of homeowners to continue in a lawsuit against their county and flood control district over property damage that was allegedly a known possibility when the government entities approved the housing development.  These cases are rare, so it’s an unusual opportunity to take a look at the concept of “takings” in a flood control context.

What is inverse condemnation?

There’s a fundamental concept in Federal and State Constitutions that the taking or damaging of private property for a public use must be compensated.  When private property is taken for public use without compensation, the property owner can file an inverse condemnation action to force the government to pay for the damage.  The policy underlying inverse condemnation claims is that a private individual should not be forced to bear a disproportionate share of the costs of a public project.

Can flooding lead to inverse condemnation claims?

Inverse condemnation cases arise in the context of flood control where a government action results in the flooding of private property.

In California, for example, current case-law suggests that an inverse condemnation action will be successful only if the deliberate design and construction of a project or public improvement causes physical injury to real property.  In other words, the project as planned must be the cause of the damage rather than faulty construction or maintenance of a project.  This high bar for success in an inverse condemnation case makes sense; if public agencies could be sued for just negligent maintenance, they may not choose to embark on projects that protect the public.

Most flood control projects require environmental review triggered by a federal, state, or local agency permit or decision. For example, federal agencies must consider the environmental impacts of their proposed actions under the National Environmental Policy Act (NEPA), and many states have their own “mini-NEPA” laws that require state and…

Since 2008 the Natomas area in the City of Sacramento has been under an effective moratorium on new development due to insufficient flood protection. The area is preparing to re-start development once the City receives a letter from the Federal Emergency Management Agency (FEMA) that lifts a flood hazard designation…

A lawsuit brought in 2013 by the Southeast Louisiana Flood Protection Authority-East has been dismissed by a federal judge who found that the Authority had failed to support its claims against dozens of oil, gas and pipeline companies. The Authority sued the companies for damages, arguing that their oil and gas exploration activities had damaged wetland areas, making the coast more vulnerable to flooding during hurricane events such as Hurricane Katrina in 2005.

Background

The Southeast Louisiana Flood Protection Authority-East (Authority) is one of two levee authorities that service the metropolitan New Orleans area. The authorities are responsible for protecting residents, businesses and properties from flooding, including adopting rules and regulations for carrying into effect a comprehensive levee system (which includes levees, floodwalls, drainage structures and floodgates).

In July 2013, the Authority filed suit against 97 oil, gas and pipeline companies on the theory that their exploratory activities over time have damaged wetlands, which in turn has left New Orleans vulnerable to catastrophic flooding. Specifically, the suit alleges that the dredging of canals by the oil and gas companies allowed for destruction of wetlands that protect the New Orleans area from flood damages, and that those damages complicated and increased the cost of management of the levee system. 

When it comes to federal legislative actions that impact flood control, the passage of water infrastructure legislation was undoubtedly the most significant action in 2014. After months of difficult negotiations in Congress, the House and Senate passed the Water Resources Reform and Development Act (WRRDA) and the President signed the bill into law in late spring of 2014. The legislation streamlines environmental review, increases flexibility for non-Federal sponsors, and authorizes key projects, most notably flood risk management projects.

The U.S. Army Corps of Engineers (USACE) issued a new engineering circular (EC 1165-2-216) to provide policy and guidance for processing requests to alter USACE civil works projects pursuant to 33 U.S.C. section 408. This new circular collects existing guidance from several informal documents, codifies USACE practice from some USACE Districts that process many 408 requests, and expands the guidance to cover other objectives beyond flood risk reduction, such as water supply, hydroelectric, and ecosystem restoration. Section 408 (33 U.S.C. section) is a decades old provision of Federal law that prohibits a non-Federal interest from altering a Federally authorized water resources development project without advance permission from the Secretary of the Army. That authority has been delegated to the Assistant Secretary of the Army, then to the Chief of Engineers, and then to the Director of Civil Works.  This new Engineering Circular provides the rules associated with that delegation.